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August 6, 2009

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OARC sues Mt. Airy landlord in dispute over parking area

It would seem that all was not well between Jack Kitchen and David Fellner despite both men’s claims to the contrary just two weeks ago. A lawsuit that was filed last week by OARC, the community development corporation Kitchen heads, accuses Fellner of fraud in negotiations concerning the North by Northwest night club.

In June, Fellner, who owns the building at 7161 Germantown Ave., sent Kitchen a letter terminating OARC’s lease at 7161 Germantown Ave. When asked about it, Fellner said he was advised to do so by his attorney, but hoped to resolve the issues and to keep NXNW as a tenant. Kitchen said he also expected to be able to work out a resolution.

The complaint asks for $760,000 in restitution to cover a $609,000 investment and $160,000 in losses over the last four months. The crux of the dispute between the two men is over parking and water and sewer system issues. Fellner said Kitchen is trying to bully him and Kitchen said Fellner lied to him.

“These allegations are blatantly not true,” Fellner said.

Kitchen claims that Fellner agreed to provide “sufficient” parking for the restaurant’s patrons during pre-purchase negotiations. Fellner said it never happened.

“There were no negotiations,” he said.

OARC, which is the pet CDC of State Representative and House Appropriation’s Chair Dwight Evans, purchased the restaurant last spring from previous owners Ahmeenah Young, Ina Walker and Rose Singley. As part of the purchase, OARC took over the lease, as had Young’s group from the original owners. The 10-year lease had just six months left.

“Shame on you as a business owner to invest $600,000 without a written agreement and a six-month lease,” Fellner said.

Kitchen referred all questions to his attorneys David Fineman and Lee Applebaum of Fineman, Krekstein and Harris in Center City. Applebaum declined to comment saying he did not want to litigate the case in the press.

However, in a May e-mail to several people Kitchen described his frustration with Fellner.

“I guess this is what happens when one attempts to get a landlord to complete repairs as contained in a lease agreement, or to honor representations made about dealing with the parking issue.”

Parking along the stretch of Germantown Avenue, where NXNW is situated, has been an issue for some time. The Mt. Airy BID has been working with community groups for months to identify solutions for creating more parking for the businesses that can also alleviate the burden on residents just off the Avenue.

NXNW has a small lot off of Mt. Airy Avenue, just around the corner from the club and had previously been allowed to use the Northwestern Human Services lot and the Valley Green Bank lot after hours.

In the complaint, Kitchen asserts that Fellner entered into a binding agreement to provide parking, which was in fact a stipulation of OARC purchasing the business. There is a lot that runs just behind the storefronts. It would require patching, paving and installing security lighting to be used as a parking lot.

Fellner said he never agreed to fix up the lot and that cost is prohibitively high.

“I didn’t tell him anything,” Fellner said. “He wants me to pay for the lot and I just don’t have the money.”

It has been reported that the restaurant closed several weeks ago after a sewage drain backed up in the basement. Kitchen claims that Fellner knowingly hid a major problem with the sewer line cleanout to the main street.

Fellner acknowledged the problem with the drain. He said the original owners made him aware of it but they were able to treat it and had no problems. After the rainstorm several weeks ago, when the drain failed, Fellner was informed of the problem and told that someone had come out to look at it.

“OARC had someone go and put a camera down the drain and they found grease,” he said.

Fellner said he requested a copy of the tape but never got one. He did receive a written report. Fellner further said that the lease is very clear, and that his lawyer advised him that he was not shirking his responsibility under the terms.

“He wants to buy the building to get control over the land,” Fellner said. “That’s what this is all about. He’s trying to muscle me, bully me.”

Fellner may not be far off. Kitchen admitted to trying to buy the building in his e-mail and stated that taking the land from Fellner may be the only way to get parking in Mt. Airy.

“Honestly we have attempted every option with him,” Kitchen said. “We have offered to be a bank for him, offered to buy the lot from him, offered to buy the lot and North by Northwest, thus creating an open walkway at 7161 Germantown Ave. to connect the corridor to the lot. All offers have been ignored. As I see it the only plausible solution to permanently cure the parking issues would be to enact an eminent domain proceeding for the betterment of the community.”

Presumably Kitchen will wait to see what the court decides first.




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